Protecting the lawgivers

The Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 seeks to make long overdue amendments to Articles 217(1) and 224(3) of the Constitution of India, which peg the retirement age of high court judges at 62. Introduced in the Lok Sabha on August 25, 2010, the Bill takes its cues from the 39th report of the parliamentary standing committee on personnel, public grievances, law and justice, that the retirement age of high court judges be “brought at par with the retirement age of [judges] of the Supreme Court”, who presently retire at 65. However, while the objectives of the proposed amendment are laudable, the Bill in its present form may have an adverse impact on the length of the term of Supreme Court judges, unless its enactment is paired with a definitive policy on the age at which judges will be appointed to the Supreme Court.

As things stand today, an appointment to the Supreme Court of India carries with it not merely the ability to pronounce judgements of appellate finality, but also a three-year job extension. In fact, in 1950, the gap between the retirement age of high court and Supreme Court judges was even wider; back then, high court judges would retire at age 60, although the retirement age was raised to 62 by the Seventh Amendment (1956). But Chief Justice A P Shah’s highly visible retirement from the Delhi high court earlier this year brought into question why high court judges must retire earlier than Supreme Court judges at all. Indeed, the Constitution’s retirement age gap seemed to be nothing more than hierarchical hieroglyphics: despite what one may say about Delhi’s cleaner air and better infrastructure, appointment to the Supreme Court does not extend life expectancy.

However, the difference in the retirement age of Supreme Court and high court judges may have been rooted in practical considerations – particularly, it guaranteed that our Supreme Court judges would serve terms of at least three years in office. Today, Supreme Court judges are picked almost overwhelmingly from the senior ranks of the high courts – typically from the pool of high court chief justices across the country. By virtue of the High Court retirement age, these judges, though on the older side, are all under the age of 62. For example, two out of three of the latest appointments to the Supreme Court, Justices H L Gokhale and G S Misra, were appointed at age 61. Similarly, 15 out of 29 Supreme Court judges on Chief Justice S H Kapadia’s court at present were appointed at age 60 or above. Since a judge appointed to the Supreme Court is under 62 by virtue of the retirement age, the Constitution presently ensures that he will serve a term of at least three years in office, i.e. until he turns 65.

But if the retirement age of high court judges is raised to 65, then the pool of judges from which the collegium will have to pick Supreme Court nominees will necessarily be older. For example, increasing the age of retirement to 65 may make it more difficult for the collegium to ignore a 64-year-old high court chief justice for appointment to the Supreme Court. This may inevitably result in the appointment of judges to the Supreme Court who will spend short one- or two-year terms, if not terms of only a few months. It cannot be emphasised enough that constitutional courts which impact questions of policy must have judges who serve adequate terms in office. After all, its members are judges, not candidates for a masters degree in judicial decision-making.

Over the last 25 years, the average length of the term on the Supreme Court has gradually gone down. Consider that one of India‘s greatest judges, Chief Justice P N Bhagwati, served on the Supreme Court for 13 years – a period even longer than his high court tenure. By contrast, judges on Chief Justice S H Kapadia’s court today have an average tenure of a little over five years in office. Further, over 25 years, India’s Supreme Court has had around 129 judges including 22 chief justices. Conversely, the American Supreme Court (whose judges have life terms) in over two centuries has had only 112 judges and 17 chief justices. The increasingly shorter Supreme Court term may have something to do with the higher turnover of Indian Supreme Court judges.

SUPREME COURT OF INDIA

The proposed 114th amendment to the Constitution is a much-needed reassurance for India’s dedicated and persevering high court judges. It tells them that they are no less valuable than Supreme Court judges, that they are as capable, and that they can and must serve in office for as long a period of time. The Supreme Court bar today benefits from the leadership of its octogenarians, and there is no compelling reason why the high court bench should not benefit from its older sexagenarians, who in any event perform comparable legal work on appellate and arbitral tribunals. But at present, the Bill threatens to shorten the length of an already dwindling Supreme Court term of office, and its enactment must either be more fully thought through or followed by a definitive policy on the age at which judges will be appointed to the Supreme Court.

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